8

This element of Kelsen’s system of international law, then, is clearly (as Kelsen himself
admitted) political.

The Doctrine of bellum justum

The next key element of Kelsen’s conception is the doctrine of bellum justum. Under this
doctrine, war is either a delict (that is, an offence against international law) or a sanction.10 In the
latter case, one speaks of bellum justum. Here, Kelsen seeks to prove that international law is,
indeed, a coercive order. For, according to Kelsen, a legal order must, by definition, also be a
coercive order, i.e. if there was no coercion behind the international law, then it would not be
‘law’.11And coercion, for Kelsen, includes necessarily physical force. One could question this
narrow definition of coercion or simply point out the discrepancy between international law (at
that time) and this doctrine; however, this would at most only reveal the doctrine as wrong, not
as political. The doctrine flows from Kelsen’s strict definition of law (that is, the legal order as a
coercive order, and coercion as physical force), not from a political decision (as, for example,
from the desire to tame or subdue war). It is, thus, classified as nonpolitical.

10
H. Kelsen, Unrecht und Unrechtsfolge im Völkerrecht, at 583 . (1932).
11
Hans Kelsen, The Legal Process and International Legal Order 13 (1935): “whoever rejects
the theory of the iustum bellumdenies the legal nature of international law.”
 9

CHAPTER V- APPLICATION OF PURE THEORY OF LAW TO

CURRENT PROBLEMS OF INTERNATIONAL LAW

Perhaps the most salutary feature of the Pure Theory of Law for the analysis of international law
is its ordering function. The hierarchical model Kelsen uses to explain the interrelationship of
norms (the Stufenbau) can be used to great advantage in bringing order to the somewhat muddled
positions the doctrine of international law holds both on the sources of law and on the mechanics
of norm-relationships.
Hence, the following will be an exposition of international law’s ‘constitution’ in a specific
sense: The highest echelons of a positive legal order, what Kelsen termed ‘constitution in the
material sense’. 12 In this sense, the sources of international law are the foundation of the
international legal order (Section 6.2.1) and the rules and mechanisms of other norm-
relationships serve as the operating principles of international law (Section 6.2.3). The notion of
‘sources’ is a relativistic concept. Sources are empowering norms authorising humans to create
13
norms. An empowering norm’s function is to identify the norms created under it
andtherefore belonging to it: ‘A norm belongs to a legal order only because it is created under
the terms of another norm of the same order.’ In a sense, the Pure Theory is nothing but a theory
of sources, for its construction of normative orders depends upon the authorisation to create
norms. If a norm’s validity can only be based on another norm, then a connection between norms
is established, one based on one norm’s validity being dependent upon another norm. The
question ‘Why ought I to obey this statute?’ is answered by reference to the norm that has
authorised its creation. The ‘higher’ law empowers law-creation; that empowerment is the reason
the resultant law is valid. Creation establishes a ‘hierarchy of legal conditionality’. If, and only
if, all conditions imposed by the meta-law on law creation are met, can the norm created be
recognised as a norm of the normative ordering question and only then can the norms be ordered
in a multitude of spheres between delegating and delegated norms. .While international law
necessarily has a Stufenbau, here we do not have the problem of a highly complex network, but
of the apparent lack of any rules on rule-making. The hierarchy of legal conditionality is a

12
Kelsen (1960) at 228; Rudolf Aladár Métall, ‘Skizzen zu einer Systematik der
völkerrechtlichen Quellenlehre’,Zeitschrift für öffentliches Recht (1931) 416–428 .
13
Hans Kelsen, Principles of international law (1952) 303.
 10

necessary element of all normative orders: every normative order has at least two layers of
norms; it has at least the positive norm created and the presumed (quasi-fictional) Grundnorm. If
‘A’ had never issued a norm and would do so now, this norm would only be conceivable as a
norm if the Grundnorm: ‘Follow A’s orders’ were presupposed. Determining the source of law
is a crucial questions of international law. We seem to take international treaty law, customary
international law and ‘general principles of law’ as sources without asking whythey are part of
the normative order ‘international law’. If we combine the notion of ‘constitution’ as the highest
echelon of authorising norms in a given normative order (in international law traditionally treaty
law and customary law) with the notion of the hierarchy of norms (Stufenbau), at least the
correct question to ask in response to the one above appears almost automatically: What norm of
international law authorises the creation of law. According to the Pure Theory of Law we must
find positive norms of international law that create source-law (such as the law on custom-
creation).How we are to proceed depends upon the answer we can give and either we find a
positive norm authorising source-creation, or we do not. This is a prime example of the self-
chosen limits of the Pure Theory: positivist international lawyers will have to do research on the
positive-legal bases of the sources and in no case should they assume content. They cannot, for
example, simply take Article 38 ICJ Statute as an authoritative statement of the sources14 simply
because it is generally accepted as such. Here, the Pure Theory of Law can help in debunking
the myths through its emphasis on the analysis of positive law. If a scholar’s idea – or even the
prevalent opinion – of what constitutional norms should have as their content conflict with the
positive legal regulation, the Pure Theory helps us realise that the positive law is the positive
law. No amount of presupposition of ‘necessary constitutional functions’ will magic elements of
(domestic) constitutional law – such as a mandatory protection of individual rights – into being
for international law if positive international law does not support it. Here, Kelsenian theory
clarifies the issue: scholarly opinion camouflaging as ‘absolute values’ does not make, change or
destroy positive law.

14
R.S. Pathak, ‘The general theory of the sources of contemporary international law’, Indian